Citation Nr: 0808004
Decision Date: 03/07/08 Archive Date: 03/17/08
DOCKET NO. 05-38 926 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Jackson,
Mississippi
THE ISSUES
1. Entitlement to a rating in excess of 10 percent for
service-connected traumatic arthritis of the left knee with
history of chip fracture and dislocation of the left patella.
2. Entitlement to a total disability evaluation for
compensation purposes based upon individual unemployability
(TDIU).
REPRESENTATION
Appellant represented by: Texas Veterans Commission
ATTORNEY FOR THE BOARD
C. Chaplin, Counsel
INTRODUCTION
The veteran had active service from July 1974 to June 1976.
This matter comes before the Board of Veterans' Appeals
(Board) from a July 2005 rating determination of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Jackson, Mississippi that denied entitlement to a TDIU. This
matter further arises from a September 2005 rating decision
that continued a 10 percent rating for chip fracture and
dislocation of left patella.
The Board remanded the case in March 2006 for further
development and readjudication.
In the veteran's substantive appeal received in November
2005, he wrote that his left ankle was affected by his
service-connected left knee and that his ankle became
swollen. The implied claim for service connection for a left
ankle disability secondary to a service-connected left knee
disability is referred to the RO for appropriate development.
FINDINGS OF FACT
1. Arthritis of the left knee is manifested by subjective
complaints of pain and instability with clinical evidence of
crepitus, tenderness on palpation, noncompensable limitation
of motion, and arthritis.
2. The veteran is only service-connected for traumatic
arthritis of the left knee, rated as noncompensable from July
1, 1976, 10 percent disabling from July 31, 2002, 100 percent
disabling under the provisions of 38 C.F.R. § 4.30 from
November 4, 2004, and 10 percent disabling from November 1,
2005.
3. The veteran's service-connected disability is not shown
to be of such severity as to preclude substantially gainful
employment.
CONCLUSIONS OF LAW
1. The criteria for a rating in excess of 10 percent for
traumatic arthritis of the left knee with history of chip
fracture and dislocation of the left patella have not been
met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002
& Supp. 2007); 38 C.F.R. §§ 4.7, 4.56, 4.73, 3.159, 4.1, 4.2,
4.71a, Diagnostic Codes (DCs) 5010-5003.
2. The criteria for the assignment of a TDIU rating have not
been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002
& Supp. 2007); 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.16 (2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Duty to notify and to assist
Upon receipt of a complete or substantially complete
application, VA must notify the claimant and any
representative of any information, medical evidence, or lay
evidence not previously provided to VA that is necessary to
substantiate the claim. This notice requires VA to indicate
which portion of that information and evidence is to be
provided by the claimant and which portion VA will attempt to
obtain on the claimant's behalf. See 38 U.S.C.A. §§ 5103,
5103A, 5107 (West 2002 & Supp. 2006); 38 C.F.R. § 3.159
(2007). The notice must: (1) inform the claimant about the
information and evidence not of record that is necessary to
substantiate the claim; (2) inform the claimant about the
information and evidence that VA will seek to provide; (3)
inform the claimant about the information and evidence the
claimant is expected to provide; and (4) request or tell the
claimant to provide any evidence in the claimant's possession
that pertains to the claim, or something to the effect that
the claimant should "give us everything you've got
pertaining to your claim(s)." Pelegrini v. Principi, 18
Vet. App. 112 (2004).
Here, the RO sent correspondence in January 2005, August
2005, and May 2006; rating decisions in July 2005, September
2005, and August 2007; and a statement of the case in
November 2005. These documents discussed specific evidence,
the particular legal requirements applicable to the claims,
the evidence considered, the pertinent laws and regulations,
and the reasons for the decisions. VA made all efforts to
notify and to assist the appellant with regard to the
evidence obtained, the evidence needed, the responsibilities
of the parties in obtaining the evidence, and the general
notice of the need for any evidence in the appellant's
possession. The Board finds that any defect with regard to
the timing or content of the notice to the appellant is
harmless because of the thorough and informative notices
provided throughout the adjudication and because the
appellant had a meaningful opportunity to participate
effectively in the processing of the claims with an
adjudication of the claims by the RO subsequent to receipt of
the required notice. There has been no prejudice to the
appellant, and any defect in the timing or content of the
notices has not affected the fairness of the adjudication.
See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on
other grounds, 444 F.3d 1328 (2006) (specifically declining
to address harmless error doctrine); see also Dingess v.
Nicholson, 19 Vet. App. 473 (2006). Thus, VA has satisfied
its duty to notify the appellant and had satisfied that duty
prior to the final adjudication in a supplemental statement
of the case issued in August 2007.
In addition, all relevant, identified, and available evidence
has been obtained, and VA has notified the appellant of any
evidence that could not be obtained. The appellant has not
referred to any additional, unobtained, relevant, available
evidence. VA has also obtained a medical examination in
relation to this claim. Thus, the Board finds that VA has
satisfied both the notice and duty to assist provisions of
the law.
Left knee disorder
The veteran seeks a disability rating higher than 10 percent
for his service-connected left knee disability. He contends
that his disability is more severe than currently evaluated.
Disability ratings are based upon schedular requirements that
reflect the average impairment of earning capacity occasioned
by the state of a disorder. 38 U.S.C.A. § 1155. Separate
rating codes identify the various disabilities. 38 C.F.R.
Part 4 (2007). In determining the level of impairment, the
disability must be considered in the context of the entire
recorded history, including service medical records.
38 C.F.R. § 4.2 (2007). An evaluation of the level of
disability present must also include consideration of the
functional impairment of the veteran's ability to engage in
ordinary activities, including employment. 38 C.F.R. § 4.10
(2007). Also, where there is a question as to which of two
ratings shall be applied, the higher rating will be assigned
if the disability picture more nearly approximates the
criteria required for that rating. Otherwise, the lower
rating will be assigned. 38 C.F.R. § 4.7 (2007).
The Board will also consider entitlement to staged ratings to
compensate for times since filing the claim when the
disability may have been more severe than at other times
during the course of the claim on appeal. Fenderson v. West,
12 Vet. App. 199 (1999); Hart v. Mansfield, 21 Vet. App. 505
(2007).
In a November 1976 rating decision the veteran was granted
service connection for chip fracture and dislocation of left
patella which resulted from an athletic injury in service.
The veteran had patella tenderness and laxity on the lateral
side with a diagnosed impression of subluxation of the left
patella. The RO assigned a zero percent (noncompensable)
rating under DC 5257 for evaluation of knee impairment. The
noncompensable rating was continued in a March 1987 rating
decision.
In a March 2003 rating decision, based on x-ray evidence of
degenerative changes within the knee, noncompensable
limitation of flexion and no instability noted, the RO rated
the disability under DC 5010 for traumatic arthritis and
assigned a 10 percent rating.
In a November 2004 rating decision, based on arthroscopic
knee surgery in November 2004 the veteran was granted a
temporary total rating for convalescence from November 2004
with a 10 percent rating assigned effective January 1, 2005.
In a July 2005 rating decision the temporary total rating was
extended until March 1, 2005, and after that a 10 percent
rating was assigned.
During the pending appeal, in an August 2007 rating decision
the RO extended the temporary 100 percent rating to November
1, 2005. The 10 percent rating was restored effective
November 1, 2005, for traumatic arthritis of the left knee,
with history of chip fracture and dislocation of the left
patella.
At a VA examination in September 2005, the veteran complained
of pain with flare-ups due to activity. He was using
medication for pain. He complained of instability, locking
and swelling. He was using a crutch full time and wore a
brace. He was able to walk only 50 feet without severe pain.
He was not employed at that time due to his knee. He was
trained in mechanic and tire work. Clinical findings were
mild swelling about his joint, mild patellofemoral pain with
motion and a negative patellar grind test. His knee was
stable ligamentously. Range of motion was from 5 degrees of
extension to 110 degrees of flexion. His strength was 5/5
and sensation was normal. There was normal gross alignment
with evaluation. There was progressive pain with repetitive
range of motion. There was no increasing fatigability or
loss of range of motion. X-rays showed early degenerative
change in the left knee. There were no fractures or
dislocations. The assessment was mild osteoarthritis of the
left knee. He was status post multiple arthroscopic
surgeries and status post multiple injections. His knee pain
had continued since the early 1970s and progressed over time.
The examiner opined that it was conceivable that pain could
further limit function as described particularly after being
on his feet all day. The examiner found that it was not
feasible, however, to attempt to express any additional
limitation of motion as that could not be determined with any
degree of medical certainty.
VA outpatient treatment records show the veteran sought
treatment for complaints of left knee pain. He was
interested in having a total knee replacement and although
surgery for that was initially considered, after further
consultation, medical approval for a left total knee
replacement was denied.
On examination in October 2005, range of motion was from 0 to
110 degrees and he had no laxity to varus or valgus. He had
mild valgus deformity. He had mild tenderness to palpation
at the medial joint line. He had positive retropatellar
crepitus and positive patellar grind. His extensor mechanism
was intact. He had negative Lachman's and negative
McMurray's. He was neurovascularly intact distally. X-rays
demonstrated mild to moderate tricompartmental
osteoarthritis. The assessment was left knee osteoarthritis.
He was to be fitted for an unloader brace.
In a December 2005 lay statement the veteran's spouse
described that her husband was unable to work and the effect
this had on their lives.
On examination in February 2006, he ambulated with a crutch
and had been unable to work. Range of motion of the left
knee was 0-110 degrees. He had appreciable atrophy in his
left thigh compared to the contralateral extremity. He was
tender to palpation predominantly around the medial and
lateral aspects of his patellofemoral joint. He was
minimally tender about the medial and lateral joint lines.
He had negative Lachman's and negative McMurray's. He was
neurovascularly intact distally. X-rays revealed mild
tricompartmental osteoarthritis, most pronounced in the
patellofemoral joint. The veteran reported that use of the
unloader brace had helped his symptoms in the left knee.
A progress note in March 2006 showed that the veteran had
completed his physical therapy. His pain level was still
8/10 and he had severe grinding in his left knee.
In April 2006, he was seen at a VA emergency room for left
knee pain that was worse that day. He stated that he usually
went to the emergency room instead of his primary care
provider because he had trouble getting appointments. The
diagnosis was left knee pain. In May 2006 he had an abnormal
gait and used an arm cane. Minimal swelling of the left knee
was noted.
A review of the medical record by a VA physician in June 2006
noted the history of the veteran's left knee disability. His
left knee disability limited him to walking only 50 feet.
The VA medical reviewer stated that the veteran's normal
occupation was as a mechanic, although he was unable to
perform this due to his knee pain.
In May 2007, the veteran again expressed his desire for a
left total knee replacement. However, the doctor did not
think this was a good option. The doctor prescribed a new
medication and the veteran was to be seen for follow-up in
one year.
After review of the claims file, the Board finds that
entitlement to a rating in excess of 10 percent is not shown.
The regulations provide that, for the purpose of rating
disability from arthritis, the shoulder, elbow, wrist, hip,
knee, and ankle are considered major joints. 38 C.F.R.
§ 4.45(f) (2004). Arthritis due to trauma, substantiated by
X-ray findings, is rated as degenerative arthritis. 38
C.F.R. § 4.71a, DC 5010 (2007).
Degenerative arthritis established by X-ray findings may be
rated on the basis of limitation of motion under the
appropriate diagnostic codes involved under 38 C.F.R. §
4.71a, DC 5003 (2007).
When, however, the limitation of motion of the specific joint
or joints involved is noncompensable under the appropriate
diagnostic codes, a rating of 10 percent is for application
for each such major joint or group of minor joints affected
by limitation of motion, to be combined, not added, under DC
5003. Limitation of motion must be objectively confirmed by
findings such as swelling, muscle spasm, or satisfactory
evidence of painful motion.
Normal knee joint motion is from 0 degrees of extension to
140 degrees of flexion. 38 C.F.R. § 4.71, Plate II (2007).
Limitation of flexion of the leg to 60 degrees warrants a
zero percent evaluation. A 10 percent rating requires that
flexion be limited to 45 degrees. A 20 percent rating
requires that flexion be limited to 30 degrees. A 30 percent
rating requires that flexion be limited to 15 degrees. 38
C.F.R. § 4.71a, DC 5260.
Limitation of extension of the leg to 5 degrees warrants a
zero percent evaluation. A 10 percent rating requires that
extension be limited to 10 degrees. A 20 percent rating
requires that extension be limited to 15 degrees. A 30
percent rating is warranted when extension is limited to 20
degrees. A 40 percent rating requires that extension be
limited to 30 degrees. A 50 percent rating requires that
extension be limited to 45 degrees or more. 38 C.F.R. §
4.71a, DC 5261.
The regulations preclude the assignment of separate ratings
for the same manifestations under different diagnoses. The
critical element is that none of the symptomatology for any
of the conditions is duplicative of or overlapping with
symptomatology of the other conditions. 38 C.F.R. § 4.14;
Esteban v. Brown, 6 Vet. App. 259 (1995).
In exceptional cases where the schedular evaluations are
found to be inadequate, an extra-schedular rating
commensurate with the average earning capacity impairment due
exclusively to the service-connected disability or
disabilities may be approved, provided the case presents such
an exceptional or unusual disability picture with such
related factors as marked interference with employment or
frequent periods of hospitalization as to render impractical
the application of the regular schedular standards. 38
C.F.R. § 3.321(b)(1).
The medical records show that after termination of the
temporary total rating on November 1, 2005, extension of the
left knee is normal and the limitation of flexion of the left
knee is noncompensable under DC 5260. A rating of 10 percent
is for application for degenerative changes established by x-
ray for a major joint when the limitation of motion of the
joint involved, here confirmed by satisfactory evidence of
painful motion, is noncompensable under the appropriate
diagnostic code. The veteran is currently in receipt of a
ten percent rating for his left knee disorder which is the
maximum available for a single joint with degenerative
changes and with noncompensable limitation of motion under
DCs 5010-5003.
The Board finds that an increased rating pursuant to §§ 4.40,
4.59 is not for application in this case because as any
functional loss experienced by the veteran is encompassed by
the current 10 percent rating assigned under DC 5010. DeLuca
v. Brown, 8 Vet. App. 202 (1995).
The Board notes that the VA General Counsel has determined
that a claimant with service-connected arthritis and
instability of the knee may be rated separately under DCs
5003 and 5257, so long as the evaluation of knee dysfunction
under both codes does not amount to prohibited pyramiding
under 38 C.F.R. § 4.14. VAOPGCPREC 23-97 (July 1, 1997), 62
Fed. Reg. 63,604 (1997); VAOPGCPREC 9-98 (Aug. 14, 1998), 63
Fed. Reg. 56,704 (1998). In this case, although the veteran
occasionally complained of instability of the left knee, he
is not evaluated under DC 5257. The objective evidence of
record does not demonstrate findings to warrant a compensable
rating for instability of the knee, because the evidence does
not show slight recurrent lateral instability of the knee.
The veteran's range of motion has been shown at worst to be
from 5 degrees to 110 degrees. Neither of those findings
warrants the assignment of a compensable rating. 38 C.F.R.
§ 4.71a, Diagnostic Code 5260, 5261. Therefore, the Board
finds that the assignment of compensable ratings for either
or both of limitation of flexion and limitation of extension
is not warranted.
However, with X-ray evidence of arthritis and a
noncompensable level of limitation of motion, a 10 percent
rating but not higher, can be assigned. 38 C.F.R. § 4.71a,
Diagnostic Code 5003.
The evidence does not show ankylosis, recurrent lateral
instablity or subluxation, genu recurvatum, impairment of the
semilunar cartilage, or impairment of the fibia or tibula,
that would warrant a higher rating. 38 C.F.R. § 4.71a.
The Board has also considered whether the record raises the
matter of an extraschedular rating under 38 C.F.R. §
3.321(b)(1) (2007). In this case, the Schedule is not
inadequate. The Schedule provides for higher ratings for
evaluation of a knee disability, but findings supporting a
higher rating have not been documented. In addition, it has
not been shown that the service-connected disability has
required frequent periods of hospitalization or has produced
marked interference with the veteran's employment beyond that
contemplated in the assigned evaluation. For these reasons,
the Board finds that referral for consideration of the
assignment of an extraschedular rating is not warranted.
Consequently, based upon a full review of the record, the
Board finds that the 10 percent evaluation for arthritis of
the left knee adequately reflects the clinically established
impairment experienced by the veteran. The veteran's
symptoms remained constant throughout the course of the
period on appeal, other than during the period of a temporary
total evaluation from November 2004 to November 1, 2005, and
as such a staged rating is not warranted. Fenderson v. West,
12 Vet. App. 199 (1999); Hart v. Mansfield, 21 Vet. App. 505
(2007). As the evidence preponderates against the claim for
an increased rating for the veteran's service-connected left
knee disability, the claim must be denied. 38 U.S.C.A. §
5107(b). Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
TDIU
The veteran contends that he is entitled to individual
unemployability due to the severity of his service-connected
left knee disability.
In his application for a TDIU received in February 2005, the
veteran stated that his service-connected left knee prevented
him from securing or following any substantially gainful
occupation. He became too disabled to work in July 2004 and
that was the date he last worked full time. He had
previously worked as a laborer, machine operator and
carpenter. He had not tried to obtain employment since his
last job. He had completed two years of college and denied
having had any education and training since he became too
disabled to work.
Under the applicable criteria, total disability ratings for
compensation based upon individual unemployability may be
assigned where the schedular rating is less than total, when
it is found that the disabled person is unable to secure or
follow a substantially gainful occupation as a result of a
single service-connected disability ratable at 60 percent or
more, or as a result of two or more disabilities, provided at
least one disability is ratable at 40 percent or more and
there is sufficient additional service-connected disability
to bring the combined rating to 70 percent or more.
38 C.F.R. §§ 3.340, 3.341, 4.16(a).
In exceptional circumstances, where the veteran does not meet
the aforementioned percentage requirements, a total rating
may nonetheless be assigned upon a showing that the
individual is unable to obtain or retain substantially
gainful employment. 38 C.F.R. § 4.16(b).
Rating boards should refer to the Director of the
Compensation and Pension Service for extra-schedular
consideration all cases of veterans who are unemployable by
reason of service-connected disabilities but who fail to meet
the percentage requirements set forth in 38 C.F.R. § 4.16(a).
The veteran's service-connected disabilities, employment
history, educational and vocational attainment, and all other
factors having a bearing on the issue must be addressed. 38
C.F.R. § 4.16(b).
A total rating for compensation purposes based upon
individual unemployability will be assigned when there is
present any impairment in mind or body that is sufficient to
render it impossible for the average person to follow a
substantially gainful occupation. 38 C.F.R. § 3.340(a).
However, in determining whether a particular veteran is
unemployable, the Board must also give full consideration to
unusual physical or mental effects in individual cases, to
peculiar effects of occupational activities, to defects in
physical or mental endowment preventing the usual amount of
success in overcoming the handicap of disability and to the
effect of combinations of disability. 38 C.F.R. § 4.15. The
Board must consider the effects of the veteran's service-
connected disability in context of his employment and
educational background. Fluharty v. Derwinski, 2 Vet. App.
409 (1992).
The central inquiry is whether the veteran's service
connected disabilities alone are of sufficient severity to
produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524
(1993). The fact that a claimant is unemployed or has
difficulty obtaining employment is not enough. The ultimate
question is whether the veteran is capable of performing the
physical and mental acts required by employment, not whether
he can find employment. Van Hoose v. Brown, 4 Vet. App. 361
(1993).
After review of the evidence of record, the Board finds that
entitlement to a TDIU is not established.
The veteran's only service-connected disability is traumatic
arthritis of the left knee rated as noncompensable from July
1, 1976; 10 percent disabling from July 31, 2002; 100 percent
disabling under the provisions of 38 C.F.R. § 4.30 from
November 4, 2004; and 10 percent disabling from November 1,
2005. As discussed above, based on the evidence of record, a
rating in excess of 10 percent is not established for his
service-connected left knee disability. The veteran's rating
does not meet the minimum percentage requirements for a TDIU
under 38 C.F.R. § 4.16(a). The rating board did not refer
this case for extra-schedular consideration.
The veteran had arthroscopic surgery on his left knee in
November 2004 and was in receipt of a temporary total rating
until November 1, 2005. When evaluated in September 2005,
the assessment was mild osteoarthritis of the left knee. He
had had multiple surgeries. He was trained in mechanic and
tire work. The veteran stated that the pain was limiting him
from working at his job.
VA outpatient treatment records show that the veteran seeks
periodic treatment for his left knee pain and other
nonservice-connected disabilities. The records do not show
that the veteran was unemployable due solely to his service-
connected left knee disability.
A VA doctor reviewed the veteran's claims file in June 2006
and noted the history of the veteran's left knee disability.
His left knee disability limited him to walking only 50 feet.
The VA medical reviewer found that the veteran's normal
occupation was as a mechanic, although he was unable to
perform this due to his knee pain. There was no finding that
the service-connected left knee disability interfered with
all types o employment.
The veteran was denied Social Security Administration (SSA)
benefits in June 2006 as he was found not disabled. The
rationale noted that his physical examination was essentially
within normal limits; however, he was found to have some
restrictions with regard to his physical impairments. Those
restrictions, however, did not preclude gainful activity.
The records indicate that the veteran had capacity for other
work and should adjust to other work. The primary diagnosis
was status post arthroscopy of the left knee, with other
diagnosed nonservice-connected disabilities shown as
secondary and other alleged impairment. The veteran was not
found unemployable by the SSA based on his service-connected
left knee disability and other nonservice-connected
disabilities. Thus, these SSA records do not show that the
veteran was unemployable due only to his service-connected
left knee disability.
After a thorough review of the record, the Board finds that
the functional limitations imposed by the veteran's service-
connected left knee disability do not preclude his
performance of substantially gainful employment. The
evidence indicates that the veteran's service connected left
knee disorder limits him from doing his previous work as a
mechanic and possibly physical labor. However, there did not
seem to be a contraindication to him performing work that did
not require mobility. The evidence does not show that the
veteran is precluded from sedentery employment by his
service-connected disability.
While the veteran may believe that his service-connected
disability prevents him from working, as a layperson without
the appropriate medical training and expertise, the veteran
is not competent to provide a probative opinion on a medical
matter. Bostain v. West, 11 Vet. App. 124 (1998); Espiritu
v. Derwinski, 2 Vet. App. 492 (1992); Routen v. Brown, 10
Vet. App. 183 (1997) (layperson is generally not capable of
opining on matters requiring medical knowledge). The Board
finds that the evidence in this case does not support the
veteran's assertions.
The veteran asserts that he is unemployable due to his left
knee disability, but there is no indication that his left
knee disability precludes him from all gainful employment.
The Board therefore concludes that this case presents no
unusual or exceptional circumstances that would justify a
referral of the total rating claim to the Director of the
Compensation and Pension Service for consideration of an
extra-schedular rating. In the absence of any evidence of
unusual or exceptional circumstances beyond what is
contemplated by the assigned disability evaluation of 10
percent, the preponderance of the evidence is against his
claim.
Accordingly, the Board finds that the preponderance of the
competent and persuasive evidence supports a finding that the
veteran is not precluded from securing and maintaining
gainful employment solely by reason of his service-connected
left knee disability. There is no objective evidence that
the veteran's service-connected left knee disability alone
prevents him from securing and following any type
substantially gainful employment. As the preponderance of
the evidence is against the claim, the claim must be denied.
38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski,
1 Vet. App. 49 (1990).
ORDER
Entitlement to a disability rating in excess of 10 percent
for service-connected traumatic arthritis of the left knee
with history of chip fracture and dislocation of left patella
is denied.
Entitlement to a TDIU is denied.
____________________________________________
HARVEY P. ROBERTS
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs